#### Noble *et al. versus*Biddle and Newbold.

1. A trespasser on another’s land, who draws profits from one part of it, cannot, in an action for mesne profits after *recovery in*ejectment against him, set-ofl’ his losses in experimenting for profits on other parts of the land.

2. In an action for mesne profits, the doctrine of equitable defence allows the defendant to default no more than the value of the improvements that are useful and advantageous to the plaintiff, and give his land that much additional value.

3. The equity sustaining the defendant’s claim is, that his labor or money has gone to the actual benefit of the owner, by enhancing the worth of his property.

*4.*In an action of ejectment the verdict was for the defendant, November 8th, 1869 ; the judgment was affirmed in the Supreme Court, May 26th, 1871. Another ejectment was brought by the same plaintiff against the same defendant for the same land: the plaintiffs recovered a verdict which was affirmed *431in the Supreme Court. In an action for mesne profits the court below decided that the defendant could not he charged with profits prior to November 8th, 1869. *Held,*to be correct.

March 31st, 1876.

Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.,

Error to the Court of Common Pleas of *Warren*County, of January Term, 1875. No. 212.

These were two actions of trespass, No. 142 and No. 143, to June Term, 1874, of the court below for mesne profits, brought May 22d, 1874, by Margaret J. Biddle and.Sarah I). I. Newbold, against Orange Noble and others; on the 9th of February, 1875, the actions were consolidated j one verdict to be rendered in No. 142.

The case was tried February 9th, 1875, before Trunkey, P. J., of the 28th District.

On the 14th of June, 1798, warrant No. 5278, containing 1100 acres was patented to George Mead; this title became vested in John Maybin by treasurer’s deed acknowledged December 4th, 1822. In 1834, the treasurer of Warren County sold to Russell & Newman 600 acres of the tract which had been assessed as unseated for, taxes of 1832 and 1833. Maybin conveyed the 1 LOO acres to Boorman, who conveyed the same to Johnson on the 14th of October, 1847, and through these conveyances and others, the 600 acres above mentioned became vested in William Davidson, October 1st, 1850, and he conveyed to Orange Noble, who leased to the other defendants.

The title of Russell & Newman for the 600 acres was vested in the plaintiffs, Biddle and Newbold, April 15th, 1861. After the purchase of the Davidson title, Noble entered into possession of the 600 acres, and made leases of parts of the tracts, some to M. II. Butler, and oil wells were • sunk, one a subdivision, No. 17, according to a plot made by N. *W.*Boyne for Biddle and Newbold, the plaintiffs, this well was called “ Butler Well, No. 1.”

On the 9th of November 1867, (No. 105 to December, 1867), Biddle and Newbold, the plaintiffs here, brought an action of ejectment against Noble and others for lot No. 17. A verdict was found for the defendants on the 1st of November, 1869, and the judgment thereon was affirmed in the Supreme Court, May 26th, 1871.

, On the trial of this case the plaintiffs gave in evidence the record of an ejectment brought by them April 15th, 1869, ■No. 40, to June Term, 1869, for lots Nos. 6,16,18, 30, and 31, according to Bayne’s survey, containing together 4 acres and 71 rods. A verdict was rendered for the plaintiffs and judg-*432ment entered thereon February 6th, 1873 ; this judgment was affirmed in the Supreme Court, April 6th, 1874.

Also record of another ejectment between the same parties, brought February 23d, 1872, No. 107, to March -Term, 1872, for the whole 600 acres, excepting the 4 acres and 75 rods of the former suit. A verdict was found for the plaintiffs, and judgment entered thereon October 10th, 1873, this judgment was affirmed in the Supreme Court, April 6th, 1874. Writs of *habere facias*issued in both eases, and were both executed April 10th, 1874.

For plaintiffs, Buck one of the defendants testified, that he went into possession under Noble in August, 1867, and continued till April, 1874; sunk a well in August, got nothing to pay out of that, sold that well No. 1 with No. 2 in 1868,No 2 never produced any ; the “Emery ” well was struck in the fall of 1867, that did not produce enough to pay; the Noble well was sunk in 1869 ; the highest that produced was from 5 to 8 barrels per day. “ Davidson ” well was sunk by Butler, the highest was 30 barrels per day; another Davidson well produced very little, highest 7 or 8 barrels ; Butler’s well No. 1 was on No. 17 ; No. 2 on No. 30. Emery well on a 10-aere lot; Davidson well on No. 88, Noble well on No. 48; Buck wells on No. 16.

John Myers testified that he leased two of the wells from Noble, he lost from $1000 to $2000 on the lease; one well produced, we used the money from that to sink the other.

J. Butler testified that he superintended for M. PI. Butler, a lessee; there were two wells, which were the only producing wells; he went in 1868, they were abandoned in the fall of 1870, the entire product of No. 1 and 2 was 17,000 barrels; thought there had been 100,000 barrels from the tract.

The plaintiff gave evidence of the cost of working the wells, and other evidence of their product.

The plaintiffs rested; it was admitted that there'was no other producing well on No. 17 but the Butler well. The defendants gave evidence of the product of several wells, including Butler wells Nos. 1 and 2; only one of the Buck wells produced oil.

They offered to prove by Elijah Geer, and other witnesses, that the Forest well and somg other wells were put down by the defendants on the premises' nowin dispute; some of them before any profits had accrued to them from any wells, and others during the perception of profits from other wells, for the purpose of developing the territory to the best advantage, in good faith, under claim of right; and that some of the said wells so put down were not productive, and that the *433defendants sustained a loss in putting them down, and in their efforts to make them productive; and further offered to show the cost of said 'wells to defendants.

This for the purpose of reducing the amount of actual profits for which defendants would be accountable to plaintiffs in this action.

The plaintiffs objected because it is an attempt to charge them with the expense of fruitless explorations or experiments on the property; and not incurred in producing the oil for which plaintiffs seek to recover in this suit; and working no permanent advantage to plaintiffs’ property, and is irrelevant.

By the Court:

“ If a lessee of a subdivision of the tract of land, produced large quantities of oil, rendering royalty therefor to the defendants as his landlords, the owner of the land shall not lose the profits received by the defendants from such lessee, because the defendants, after the subdivision and leasing, expended money in sinking an unproductive well on another division of the tract.

“ The profits of a mine, opened and in operation on one part of a large tract, ought not to be sunk in mere prospecting or experiments on another part, without the consent of the owner.

“ If the offer is intended to include evidence of the cost of wells put down on a division of the tract, after subdivisions had been leased and were found productive, and while the action of ejectment was pending for the purpose of defalking such cost against the profits arising from the production of wells on divisions so leased and operated by lessees, to that extent it is overruled. • The remainder of the offer- is admitted.”

The defendants excepted, and a bill of exceptions was sealed.

Geer testified as to the number and situation of the wells, the product, the cost of working in detail, the terms of leasing by Noble; also evidence that buildings and improvements were left on the premises when the defendants Were dispossessed under the *habere facias.*

The principal evidence of the defendants was for the purpose of showing that a number of the wells were unproductive, claiming that the cost, etc., of working them was to be deducted from profit that may have been made from the other wells.

The following are the defendant’s points:

1. The verdict and judgment in favor of these defendants *434in the action of ejectment brought by plaintiffs to No. 105, December Term, 1867, conclusively establish the defendants’ right to the mesne profits derived from subdivision No. 17, from the 9th day of November, 1867, to the 23d day of February, 1872, the date of plaintiffs’ next action of ejectment covering that subdivision. And as it is admitted that Butler well No. 1 is on that subdivision ; and the undisputed evidence shows that all the profits from that well were received by the defendants between those dates; the defendants cannot be charged in this suit with any of the proceeds of said Butler well No. 1.

2. That if the jury believe from the evidence that the Buck wells Nos. 1 and 2 were put down by the defendants in an honest effort to develop the territory and make it productive, and in the prosecution of said work the expenditures exceeded the receipts from said wells, such excess of expenditure should be allowed in reduction of profits received from the other wells.

3. The same rule would apply to the Noble wells No¡ 1 and 2, if the jury believe the expenditures therefor were made by the defendants in the manner and for the purpose mentioned in the second point.

4. If the jury believe that the defendants were in possession, under claim of right, holding under a title regular on its face, and running back to the Commonwealth, and believed *bona fide*that their title was good, they should be allowed for all valuable improvements in the way of buildings, machinery, or fixtures put by them on the land, and remaining there for the benefit of the plaintiffs when they took possession under their *habere facias*in April, 1874.

The Court answered:

“ 1. Answ ered in the negative. The verdict and judgment in said action of ejectment conclusively establish the defendants’ right to the mesne profits derived from subdivision No. 17, from the 9th day of November, 1867, to the date of judgment for defendants on November 8th, 1869. It is admitted that the Butler well No. 1 is on that sub-division, and’the defendants cannot be charged with any profits from that well arising between those dates; under the evidence they can be-charged with no profits derived from said subdivision prior to November 8th, 1869. They are liable for profits arising after that date. It is admitted that Noble and those under him have been in-the exclusive possession of the land from the fall of 1867 to the 10th day of April, 1874. Under the admissions in the paper, filed November 11th, 1874, and the records in evidence, the plaintiffs show such-title as entitles them to recover in this action for mesne *435profits anterior to, as well as since the commencement of the actions of ejectment. The defendants have adduced no evidence tending to show they had a right of possession after the date of the judgment.

“ 2 and 3. It seems to be uncontroverted that a survey and subdivision of the tract of land was made by Boyne before the defendants went into possession or occupancy. Dr. Irvine testifies that he was agent for plaintiffs, and for them procured said survey. Buck, one 'of the defendants, says he first went on under Dr. Irvine, and subsequently made arrangements with Noble and others to procure the title under' which they claimed, and hold possession adversely to the plaintiffs. There is no evidence that the defendants caused any survey or subdivision of the tract, or otherwise expended money and labor in preparing the tract for leasing for oil purposes, or that their developments and wells on the divisions known as the Buck wells and Noble wells, were necessary to induce persons to lease other parts for oil purposes, or that by labor and expenditures they did so induce the taking of leases on the other parts or divisions. We called on defendants’ counsel to refer us to any evidence of such survey, expenditure, or inducement for leasing by defendants, and they concede there is none. Then upon the uneontroverted facts we instruct you, that any loss by the defendants, in excess of profits upon the Buck wells and upon the Noble wells, referred to in defendants’ second and third points, cannot be defalked against profits derived from lessee' of subdivisions of the tract.

“ If the plaintiffs caused the tract to be subdivided and prepared for leasing for oil purposes, and the defendants, with knowledge of their claim of title and such preparations, and that one of themselves had gone on under the plaintiffs, took possession, availed themselves of what had been done, received the rents from divers lessees of different divisions, and not for the purpose of effecting such leaseholds to tenants, but for the mere purpose of operating for and producing oil, lost money in their operations on other divisions, it is not equitable that such loss should be borne by*the owners. To hold otherwise, would enable an adverse claimant to take possession of unoccupied land, exhaust it of known valuable minerals, and sink all the profits in fruitless work upon another part of the tract. I do not understand that the owner’s property can, without remedy, be thus wasted or destroyed. That a material and valuable portion of the freehold, yielding large profits after deducting all reasonable expenses in taking it out of the ground and selling it in the market, shall be sunk by a trespasser who *436prospects or works in another place, though on the same tract, without advantage to the freehold, is not the law. (In this action the defendants are entitled to an equitable defence, though the action is in its nature an action of trespass. But this equity cannot extend so far as to permit a defalcation for expenses and losses not incurred in exhausting the land of valuable mineral or other part thereof.)

“ In reference to the' wells referred to by defendants in their second and third points, if you find that all of them were sunk in good faith for the development of those parts of the tract where respectively located, and that the reasonable and necessary expenses in putting them down and operating them afterwards, equalled or exceeded the production therefrom, the defendants should not be charged on account thereof. One of the Buck wells produced considerable oil. If the defendants put both down about the same time, near each to the other, for the purpose of developing the locality where located, and one turned out productive and the other not, they are entitled to the reasonable and necessary expenses on both, as against the profits or product derived from both or either. If the product did not exceed in value the amount of such expenses, they are chargeable with nothing on account thereof. The like principle applies to the Noble wells.

“4. Answered in the affirmative. A *bona fide*occupant under claim of title, who makes permanent and valuable improvements, is entitled to have them taken into account in ascertaining whether or not the real owner has sustained any damage, and may show that they are a full compensation for the value of the property he received. Such improvements should be of a permanent character, and such as enhance the value of the land. If money was expended in a structure which had become worthless before the plaintiffs recovered possession, and which was of no value at that time, it is no compensation to the owner, and he should not be the one to lose it. He who built it without the owner’s consent, in such case, must be the loser. But when the improvement, at the time of the recovery of possession, is valuable to the extent of its value at that time, it is a just compensation to apply upon the loss of profits while he was out of possession.”

The verdict was for the plaintiff for $-32,319.52.

The defendants sued out a writ of error, and assigned for error: The rejection of their offer of evidence; the answers to their points, and the part of the charge in brackets.

*B. J. Reid*and *R. Brown,*for plaintiff in error.

Where the *locus in quo*is held in good faith by a defendant under a *437good *prima facie*title it is to be treated as a unit, and if tbe defendant as one entire venture carries on a business in separate items, in an action for mesne profits an account cannot be taken of each part separately, charging profits for those yielding profits, and rejecting losses when they are shown. This is not to be decided as a matter of law by the Court, but is for the jury. The defendant after recovery in ejectment is a trespasser, but is entitled to an equitable claim for defalcation in an action for mesne profits: Ewalt *v.*Gray, 6 Watts, 427; Coulter’s Case, 5 Reports, 20 ; Green *v.*Biddle, 8 Wheaton, 1; Murray *v.*Gouverneur, 2 Johns. Cases, 438. The verdict and judgment for the plaintiffs in error in the former suit established their right to the mesne profits between its commencement and' the commencement of the third action, which reversed it: Man *v.*Drexel, 2 Barr, 202; Postens *v.*Postens, 3 W. & S., 182; Osbourn *v.*Osbourn, 11 S. & E., 55 ; Astin *v.*Parkin, 2 Burrows, 668 ; Runnington on Ejectment, 400-440.

*J. R. Clark*and *W. D.*Brown, for defendants in error.

Where expenditures on land are for permanent improvements, or are of such a character as to enhance the value of the land to the r’igh;ful owner when he regains possession, such expenditures may be allowed and defalked against the mesne profits and damages, because to the extent of such expenditures, .the owner of the freehold is *in fact benefited.*Morrison *v.*Robinson et al., 7 Casey, 456 ; Walker *v.*Humbert, 5 P. F. Smith, 407; Ewalt *v.*Gray, 6 Watts, 428; 2 Vent. Com., 385; 2 Story Eq., sections 799, 1237. The evidence is to be directed not to the amount of defendants’ expenditures, but to the increased value of the premises by reason of the improvements : 2 Grant on Ev., Sect. 559 ; Morrison *v.*Robinson, 7 Casey, 459 ; Huston *v.*Wickersham, 2 W. & S., 308; Sopp *v.*Winpenny, 18 P. F. Smith, 78.

Judgment was entered in the Supreme Court, May 8th, 1876.

Per Curiam :

We perceive no error in the doctrine of the Court below, which was simply and in short, that a trespasser on another’s land, who draws profits from one part of it, cannot in an action for mesne profits, after a recovery in ejectment against him, set-off his losses in experimenting for profits on other parts of the land. The doctrine of equitable defence in an action for mesne profits goes no farther than to allow the defendant to defalk the value of improvements that are useful and of advantage to the 'plaintiff, and give his *438land so much additional value. A trespasser cannot improve an owner out of his propertiy by making any merely to suit his whim or caprice, or by experimenting merely for gain. The equity which sustains his claim is founded on the fact that his labor or his money has gone to the actual benefit of the owner, by really enhancing the worth of his property. We see no error in limiting the right of the defendants to retain the profits of lot No. 17 to the date of the judgment, November 8th, 1869.

Finding no error in the record the judgment is affirmed.